Ermert v. Hartford Ins. Co.

• Decision Date: 12 July 1988
• Docket Number: No. 88-CA-0106,88-CA-0106
• Citation: 531 So.2d 506
• Parties: Karl F. ERMERT, III v. HARTFORD INSURANCE COMPANY, et al. 531 So.2d 506
• Court: Court of Appeal of Louisiana — District of US

Page 506

531 So.2d 506

Karl F. ERMERT, III v. HARTFORD INSURANCE COMPANY, et al.

No. 88-CA-0106.

531 So.2d 506

Court of Appeal of Louisiana Fourth Circuit.

July 12, 1988.

On Rehearing Aug. 31, 1988.

Writ Granted Nov. 28, 1988.

Jerald N. Andry and Gilbert V. Andry, III, New Orleans, for appellant.

Steven M. Lozes, Lozes, Cooper & Cambre, Raymond A. Pelleteri, Ward & Clesi, New Orleans, Thomas G. Buck Blue, Williams & Buckley, Joseph S. Palermo, Jr., Bernard, Cassisa, Saporito & Elliott, Metairie, Daniel L. Dysart, Dysart, Sanborn & Tabary, Chalmette, for appellees.

Michael G. Cordes, Linn, Foster, Freedman, Abbott, Webb, Best & Meeks, New Orleans, for appellant/appellee.

Before GULOTTA, C.J., and GARRISON and PLOTKIN, JJ.

PLOTKIN, Judge.

Appellant, Karl F. Ermert III, seeks reversal of the trial court's finding that all the members of a hunting club are not personally liable for injuries he sustained when one of the members shot him in the foot. He also seeks an increase in the amount awarded by the trial court. Appellant/appellee, Hartford Insurance Co., seeks reversal of the trial court's finding that the tortfeasor's company, Nu-Arrow Fence Co., is liable for damages sustained by Ermert in the shooting.

FACTS

We adopt the trial court's well-written and reasoned statement of the facts, as follows:

This case arose out of a shooting accident which occurred early in the morning on November 14, 1982. Plaintiff, Karl F. Ermert, III, was spending the weekend as a guest of Russell Larrieu at a hunting camp located on Bayou Bienvenue near Lake Borgne in the marshlands of St. Bernard Parish, Louisiana. Plaintiff along with Russell Larrieu, Alkaney Cummings, Leon Brumfield, Joseph Caillouette, Robert Bourcq and Kenneth Decareaux were at the hunting camp to participate in the building of duck blinds to be used in the upcoming duck season.

On the morning of the accident, Decareaux saw a nutria outside of the hunting camp and began loading a shotgun for the purpose of shooting the nutria. As defendant Decareaux was exiting the hunting camp with the loaded shotgun, the gun discharged and struck plaintiff in his left foot.

Initially, plaintiff brought suit against Decareaux and his insurer. In his first supplemental and amending petition, plaintiff alleged that Larrieu, Cummings, Brumfield, Caillouette, Bourcq and Decareaux should be held jointly and solidarily liable as defendants because of their alleged joint venture or partnership relationship. Specifically, plaintiff alleged that the hunting camp was owned by the alleged joint venture composed of Larrieu, Decareaux, Cummings, Brumfield, Caillouette and Bourcq. Plaintiff also alleged that Larrieau received annual dues from the other members of the alleged joint venture. Plaintiff further alleged that at the time of the accident, the named defendants were at the camp for the purpose of constructing improvements and were liable to plaintiff for certain acts of negligence which included failure to have rules against the unsafe and hazardous practice of allowing persons in the camp to load weapons in the camp; failure to have rules against the unsafe and hazardous practice of allowing persons in the camp to discharge weapons in the camp; and any and all other acts of negligence.

On February 1, 1985, the Court granted motion for summary judgment and maintained exceptions of no cause of action in favor of all the defendants except Decareaux, the actual tortfeasor in this case. Plaintiff appealed this decision and the Court of Appeal for the Fourth Circuit reversed and remanded the case, stating that there was a "club" and that the conflicting evidence in the record precluded summary judgment:

The evidence shows that there was a "club." Whether the men were part of a juridical entity which is liable for the negligent shooting or for their failure to formulate safety rules is a question of fact. More information on the organization, membership, meeting and club rules could support a finding of negligence. The contradictory record does not support summary judgment.

Ermert v. Hartford Ins. Co., 480 So.2d 999, 1001 (La.App. 4th Cir.1985), writ denied 484 So.2d 672 (La.1986).

Upon remand and at trial on the merits, this Court heard additional evidence and testimony regarding the organization, membership, meetings and club rules. The testimony of defendants indicates that Larrieu entered into a verbal lease on his own behalf on property belonging to Mr. Meraux. The camp building was constructed by Larrieau, Cummings, Brumfield, Caillouette, Decareaux, and Bourcq, all long time friends or acquaintances. Only Larrieu contributed money toward the actual construction. The rest of the men contributed various materials, furniture and/or labor. Larrieu negotiated an oral lease to hunt duck on ponds owned by Dubuchel. This lease was separate from the lease held by Larrieu on the site where the camp was located. Each man paid approximately $52/year in dues which was used in part to cover the annual $120 rental for the ponds.

The remainder of the funds was held by Larrieu and used for necessaries such as replacement of butane, utensils, and pots and pans. The costs of groceries was split equally. Guests wee allowed subject to approval of Larrieu. Each guest was required to pay his own share. The members always checked with Larrieu before going to the camp as they all considered Larrieu to be the owner of the camp.

Written rules were formulated at monthly meetings held in the 1960's when the membership of the association was composed of Larrieu, Brumfield, and Cummings and the camp was in a location different from that of the camp where plaintiff was injured. This earlier camp was destroyed by Hurricane Betsy and another camp was built. This second camp later burned down and the present camp was built at a different location. The rules and regulations were not formulated for the camp where plaintiff was injured but for a different and separate camp which existed approximately twenty years before the subject accident. Although no one voted to abolish the rules, they subsequently "went out of the window" because the membership evolved into a group of men who were friends and got along well together. There were no formal meetings. The men had informal discussions and were generally in agreement about hunting safety matters. In fact, any "rules" regarding hunting safety were simply common sense guidelines to which all hunters, whether experienced or not, should adhere. Common sense dictated that the guns should always to empty while in the camp, loaded only while in the duck blinds, and unloaded prior to leaving the blinds for the camp.

LIABILITY OF THE CLUB AND/OR MEMBERS

On the basis of the above facts, the trial court found that "this group of men constituted a somewhat loose unincorporated association formed solely for recreational and not for business purposes," but concluded that "there is no legislation or jurisprudence in Louisiana that discusses vicarious tort liability of members of unincorporated associations." He then cited the following general agency principles from 7 C.J.S. Association Sections 30 and 32:

While mere membership in an association does not of itself impose liability for the acts of the associates, at least in the absence of participation and knowledge or approval, liability of members of a voluntary, unincorporated association may be established by a public act of the association itself, or by the acts of officers, agents, or members where such acts are known to the membership and actively or passively approved. Liability may also exist if a member set the proceedings in motion, or agreed to a course of action which culminated in the conduct. In other words, a member of an association is liable for illegal acts which he individually commits, participates in, authorizes, or assents to or ratifies.... The mere fact of membership in an association is not of itself sufficient basis for a tort liability of individual members for the wrongful acts or omissions of an association or its agents, and liability may be required to be predicated on participation in the activities of the association or in the tortious conduct.... However, the members are responsible for tortious acts committed by the society where it can fairly be assumed that they were within the scope of the purposes for which the organization was formed, or where they aided or abetted in the commission of the tort, or individually agreed to the course of conduct which culminated in injury.... [A] member may be individually liable for his torts even though the other members are not liable.

The trial court discussed two ancient Louisiana cases cited by plaintiff as authority for holding members of an association liable. Vredenburg v. Behan, 33 La.Ann. 627 (1881); Simmonds v. Southern Rifle Club, 53 La.Ann. 1114, 27 So. 656 (1900). The court distinguished these cases from the case at hand on the basis of the fact the club itself was held liable for the torts of the club itself, not for the acts of one of its members, in the previous cases. The judge then stated There is no basis in Louisiana law, either legislative or jurisprudential, on which to hold the association liable for the acts of one member, here Decareaux. The tort committed against Ermert was not done by the association or within the scope of its purposes. The members were there to build duck blinds. The members did not aid in the commission of the tort nor did they agree to the course of conduct. In fact they forbade the use of guns around the camp.

We disagree with that conclusion. The trial court is correct that no Louisiana statutes or cases address the exact question at issue here. However, that fact alone does not preclude courts from considering whether, under the facts of the instant case, liability should flow from the act of the individual club member through the club itself to the other members of the club.

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